Category Archives: Motions In Limine

Marijuana & Necessity

Image result for marijuana medically necessary

In State v. Ruelas, the WA Court of Appeals held that a defendant in possession of more than 40 grams of marijuana who asserts a necessity defense must present a medical expert witness to support the defense.

BACKGROUND FACTS

On November 10, 2015, Sergeant Garcia stopped Mr. Ruelas for speeding. Mr. Ruelas rolled down his window and gave Sergeant Garcia his license and registration. Sergeant Garcia smelled marijuana coming from the pickup truck. He asked Mr. Ruelas about the smell and asked him to roll down his rear window. Mr. Ruelas complied, and Sergeant Garcia saw a large garbage bag containing marijuana. Sergeant Garcia then arrested Mr. Ruelas for felony possession of marijuana.

Mr. Ruelas said he had a medical marijuana card but did not provide one. Sergeant Garcia then read Mr. Ruelas his Miranda rights.

On February 26, 2016, the State charged Mr. Ruelas with one count of possession of marijuana over 40 grams.

On June 13, 2016, the trial court held a CrR 3.5 hearing. The court found that Mr. Ruelas’s initial pre-Miranda statement was the result of a routine processing question and that his additional statements were made either spontaneously and not in response to a question likely to produce an incriminating response. The court denied Mr. Ruelas’s suppression motion. After the court’s ruling, Mr. Ruelas requested a continuance to find an expert witness.

After two more continuances, on October 18, 2016, Mr. Ruelas filed his final witness list. However, the list did not include a medical expert.

On October 25, 2016, trial began. The court addressed motions in limine and questioned Mr. Ruelas about his defense of medical necessity. Mr. Ruelas explained that he was asserting the common law defense of medical necessity, not the statutory defense under the Washington State Medical Use of Cannabis Act. The State objected to the defense on the basis that Mr. Ruelas could not lay a proper foundation without having a medical expert testify. The court agreed, and did not allow testimony from Mr. Ruelas’s expert.

The trial resumed, closing arguments were given, and the jury found Mr. Ruelas guilty. He appealed.

COURT’S ANALYSIS & DISCUSSION

The WA Court of Appeals found that the Necessity defense required medical testimony. It reasoned that a defendant asserting the necessity defense must prove four elements by a preponderance of the evidence. The four elements are: (1) the defendant reasonably believed the commission of the crime was necessary to avoid or minimize the harm, (2) the harm sought to be avoided was greater than the harm resulting from a violation of the law, (3) the threatened harm was not brought about by the defendant, and (4) no reasonable legal alternative was available that is as effective as marijuana.

Here, the Court of Appeals reasoned that the defendant was required to show corroborating medical evidence that no other legal drugs were as effective in minimizing the effects of the disease. Furthermore, it reasoned that it made sense that the expert could testify to knowing the qualities of other drugs, not just the personal preference of the defendant.

The Court of Appeals also disagreed with Mr. Ruelas’s arguments that the trial court wrongfully disallowed Mr. Ruelas’s expert witness from testifying. In fact, the Court actually addressed whether Mr. Ruelas himself should be sanctioned for violating the discovery rule that parties must disclose their witnesses well before trial begins:

“A trial court may sanction a criminal defendant under CrR 4.7(h)(7)(i) for failing to comply with discovery deadlines by excluding the testimony of a defense witness.”

Here, however, the trial court did not sanction Mr. Ruelas’s for the late disclosure of his expert witness.

“Our review of the record convinces us that Mr. Ruelas did not act willfully or in bad faith,” said the Court of Appeals. “Mr. Ruelas explained that it was difficult to obtain his mother’s medical records, which Dr. Carter needed to review. Mr. Ruelas also expressed difficulty in communicating with Dr. Carter, who he described as very busy.”

Nevertheless, the Court of Appeals also rejected Ruelas’s arguments that the trial court abused its discretion when it precluded Ruelas’s expert witness from testifying. “Mr. Ruelas does not cite any authority that holds that a trial court abuses its discretion when it precludes an expert disclosed during trial from testifying,” said the Court of Appeals. “We presume there is no authority.”

Unlawful Opinion Testimony of Police Officer

Image result for police officer testifying pointing

In State v. Winborne, the WA Court of Appeals held that an officer’s use of the word “reckless” or “eluding” while testifying in a Felony Eluding trial was improper opinion testimony.

BACKGROUND FACTS

The State of Washington charged Tishawn Winborne with Theft of a Motor Vehicle, two counts of Attempting to Elude a Police Vehicle, one count of Second Degree Assault, and one count of Third Degree Assault. The assault charges arise from his resisting
of police officers.

At the start of trial, Tishawn Winborne made a motion in limine to prohibit the State’s witnesses from testifying regarding ultimate factual issues such as whether Winborne “eluded” or drove “recklessly.” However, the trial court denied the motion. For those who don’t know, a motion in limine is a pretrial motion asking that certain evidence be found inadmissible, and that it not be referred to or offered at trial.

During trial, State witnesses repeatedly testified to Tishawn Winborne’s driving “recklessly” or “eluding” law enforcement. At the close of the State’s case, the trial court dismissed the Theft of a Motor Vehicle charge because of insufficient evidence.

The jury found Tishawn Winborne guilty of both counts of Attempting to Elude a Police Vehicle, but acquitted Winborne of both assault charges.

Winborne appealed. Among other issues, he challenged the trial court’s denial of his motion in limine to prohibit any witness from testifying that Winborne drove “recklessly” or “eluded” police.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that no witness, lay or expert, may testify to his or her opinion as to the guilt of a defendant, whether by direct statement or inference. Whether testimony provides an improper opinion turns on the circumstances of the case, including (1) the type of witness involved, (2) the specific nature of the testimony, (3) the nature of the charges, (4) the type of defense, and (5) the other evidence before the trier of fact.

Next, the Court held this case was similar to the controlling precedent of State v. Farr-Lenzini:

“The state trooper in State v. Farr-Lenzini did not employ the word “reckless” in his testimony as did officers in Tishawn Winborne’s trial. Nevertheless, the same reasoning behind excluding the testimony applies. An officer can testify to his observations of the driving of the defendant without drawing conclusions assigned to the jury.”

Finally, the Court of Appeals held that the trial court abused its discretion by denying Tishawn Winborne’s motion in limine. It reasoned that the State’s police officer witnesses testified by direct statements to Tishawn Winborne’s guilt. “Whether Tishawn Winborne drove ‘recklessly’ or ‘eluded’ the officer is an element of attempting to elude a police vehicle,” said the Court. “A law enforcement officer’s improper opinion testimony may be particularly prejudicial because it carries a special aura of reliability.”

With that, the Court of Appeals reversed Tishawn Winbome’s convictions for Felony Eluding a Police Officer and remanded for a new trial.

My opinion? Good decision. The Court of Appeals is correct in saying that a police officer’s improper opinion testimony may be particularly prejudicial because it carries a special aura of reliability. This is true. Instinctively, most jurors give much weight to the testimony of police officers. And the police officers know that. For those reasons, it is imperative for defense attorneys to argue pretrial motions in limine asking the trial judge to prohibit the police officers from offering their opinions at trial and to take exception to the court’s adverse rulings; thus preserving the issue for appeal. Kudos to the defense attorney in this case.